¶1
Robert Alonzo Peraza appeals his conviction of four counts of
sodomy on a child (Child). Peraza's trial was continued
twice because the State did not provide all relevant
discovery in time for defense counsel to prepare a defense
and to procure an expert witness for impeachment purposes.
Then, thirty-two days before trial, the State filed a notice
of expert witness to rebut Peraza's anticipated defense.
The notice disclosed the name and address of the expert
(Expert), her curriculum vitae, a one-sentence description of
the nature of her testimony, and a list of citations to more
than 130 articles upon which Expert would rely; the notice
did not include an expert report.

¶2
We are asked to determine whether the State sufficiently
complied with the notice requirements under Utah Code section
77-17-13 and, if not, whether the district court erred in
admitting Expert's testimony under rule 702 of the Utah
Rules of Evidence. We are also asked to determine whether,
based on the lack of expert report, Peraza's third motion
for a continuance should have been granted. We conclude the
district court exceeded its discretion when it denied the
motion to continue after erroneously deciding to allow Expert
to testify. The State's notice did not comply with
section 77-17-13, depriving the court of the information
necessary to rule on the admissibility of Expert's
testimony under rule 702. The State also failed to meet its
burden of demonstrating that Peraza would not be prejudiced
by the denial of his motion. Peraza was entitled to a
continuance so that he could prepare to respond to
Expert's testimony. We therefore vacate Peraza's
convictions and remand for a new trial.[1]

BACKGROUND

The
Allegations

¶3
Peraza was charged with four counts of first-degree sodomy on
a child[2] after Child accused him of sexually
abusing her.[3]

¶4
Child informed her mother (Mother) and her grandfather that
Peraza did "bad things" to her that she "did
not like." During an interview at the Children's
Justice Center (CJC), Child told a social worker that Peraza
did something to her that happens "when parents really
love each other." Child explained that Peraza showed her
his "pee pee, " and made her use a hand gesture
while she touched it, and he forced her to touch it with her
mouth. She said he forced her to do this more than once.

¶5
After the first CJC interview, Child moved to California to
live with her father, and after relocating to California she
began therapy. Part of her treatment was to, "make
effigy dolls, and . . . kill the effigy doll named
[Peraza]." Eventually, Child disclosed that a second
perpetrator may have also sexually abused her, and she made
and "killed" effigy dolls of that person too.

¶6
Child's descriptions of the abuse varied over time. On
some occasions, she was explicit in describing the acts
Peraza had her perform, including descriptions of anal
penetration; at other times she recanted what she had
described. While she was living with Mother in Utah, Child
wrote Mother a note asserting that the abuse did not happen.
After she moved to California, Child called Mother, more than
once, to say that Peraza did not do anything to her. She also
told a private investigator that Peraza did not touch her and
that she never touched him.

¶7
But at trial, Child withdrew her recantations and testified
that Peraza sexually abused her. She also provided more
detail when describing the abuse than she had done in
previous interviews and therapy sessions. For example, at
trial, she testified that "Peraza had put his penis in
her vagina"; that testimony was the first time the
prosecutor and defense counsel had heard that allegation.

Pretrial
Proceedings

¶8
Peraza's trial was first scheduled for March 2015. But
the district court granted Peraza's motion for a
continuance based on newly disclosed "evidence
warranting additional investigation"-including a sexual
assault nurse examination report; Child's second
interview with someone at a CJC in California; and the
State's indication of its "intent to have
[Child's therapist] testify at trial." The court set
a pretrial hearing in April to schedule a new trial date.
During that hearing, defense counsel argued, based on
arguments made in Peraza's motions supporting his motion
for a continuance, that trial could not be scheduled because
the State still had not produced the requested evidence, the
therapist had not provided Child's therapy records, and
these records had not been subjected to an in camera
review.[4] The court determined it would postpone
scheduling a trial until further evidence had been disclosed.

¶9
In June 2015, the district court issued a subpoena duces
tecum for Child's therapy records, and the State
stipulated to an in camera review of those records. By
August, the court still had not received Child's therapy
records, but the therapist indicated she was reviewing them
to redact information not relevant to the case. Relying on
this, the court scheduled trial for October 2015. Then in
late September, after receiving the records and defense
counsel's request for information from the records, the
court informed the parties it would provide the redacted
records "by the end of [the] week."

¶10
Although trial was set for the end of October 2015, defense
counsel requested another continuance because he had learned
that a private investigator recorded one of Child's
recantations. Counsel also explained that he needed more time
to secure Child's therapist as a fact witness "for
impeachment purposes" because of Child's
recantations. The State agreed that given the circumstances,
"it'd be better to continue the trial" and
stated that it was also "look[ing] at re-filing" a
notice of expert witness based on Child's therapy
records. The court commented that it did not "know that
[it] ha[d] any choice" and continued the trial to
February 2016 with a final pretrial conference scheduled for
late January.

¶11
During the January pretrial conference, the State stipulated
to the introduction of Child's therapy records for
impeachment purposes because defense counsel was unable to
procure Child's therapist as a witness at trial. Peraza
also challenged whether Expert should be allowed to testify.
The court agreed to hear oral argument on Peraza's
objection the following week, on January 28, 2016-twelve days
before trial.

¶12
During the hearing, defense counsel argued that the
State's notice of expert witness was inadequate because
it did not include an expert report or any written
explanation that would inform the court "exactly what
this expert would be testifying to." The notice provided
Expert's name and address, her curriculum vitae, and a
list of more than 130 articles that she would be relying
upon. The notice also included a one-sentence statement that
the State intended to use Expert to present evidence of the
"methodology and science related to forensic
interviewing of suspected child sex abuse victims" and
related to "child disclosures of sex abuse including
identified factors related [to] delayed, partial and gradual
disclosures and recantations." But counsel asserted that
he could not get access to the articles cited, because the
medical journals in which they were published required
readers to pay for a subscription. And without an expert
report, defense counsel argued that all he had been provided
were "topics" that could be related to Expert's
testimony. Further, he argued,

What's troubling to me is, I don't know if those are
case notes that talk about possible theories, which if
they're just theories, that would be argument, and the
state is clearly allowed to argue. But to present evidence of
this nature, I think implies a statistical analysis. And the
case law that was cited in my objection . . . ha[s] already
said that [our courts] disfavor this type of testimony,
because . . . it implies there's a scientific . . . [and]
statistical basis for it, but yet there isn't an actual
statistical basis for [the theories].

He
asked the court "to incorporate the objection that [was]
filed" in response to the State's initial notice of
expert when the State sought to admit Child's
therapist's testimony. This written objection, based on
Utah Code section 77-17-13 and rules 702 and 403 of the Utah
Rules of Evidence, discussed the prejudicial effects of
expert witnesses testifying to "statistical evidence of
matters not susceptible to quantitative analysis" and
pointed out that the Utah Supreme Court had determined in
State v. Rammel, 721 P.2d 498 (Utah 1986), that
"statistically valid probabilities evidence that focuses
the jury's attention on 'a seemingly scientific,
numerical conclusion'" should be excluded.
Id. at 501.

¶13
The State handed the court a copy of defense counsel's
previous written objection, then explained that the purpose
of Expert's testimony was to rebut the defense's
assumed strategy of showing "that [Child] changed her
testimony over time, [and] at one point that there was a
recantation." Moreover, it did not intend "to have
[Expert] say that [Child] is telling the truth or lying, but
to simply explain to the jury that there are
circumstances" where children "with confirmed
histories of sexual abuse" have expressed "denial
or hesitation" in their disclosures of the abuse.

¶14
Defense counsel countered that "with no doubt, we will
be presenting evidence that [Child] has recanted both to her
mother and also [to] a private investigator." But he
argued that without a report from Expert, the State's
notice did not provide sufficient information with respect to
Expert's proposed testimony to allow the defense to
adequately prepare to rebut her testimony. Further, he argued
that it appeared Expert's testimony would relate only to
"possibilities" for why Child recanted and that to
have "an expert testify about them without a scientific
basis, is concerning because it gives more weight to the
state's arguments than maybe it should." Defense
counsel added that, if Expert were to mention the
"possibility that there are repressed memories, "
such references are ...

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